Daming Liu v. Rajacic
| Decision Date | 17 February 2023 |
| Docket Number | 22 Civ. 379 |
| Parties | DAMING LIU, Plaintiff, v. MICHELLE RAJACIC, et al., Defendants |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Daming Liu brings this action against Defendants Michelle Rajacic and 142 East 33rd Street Realty Corp. (“142 East”). The First Amended Complaint (the “Complaint”) asserts claims of assault, battery intentional infliction of emotional distress, conversion negligence and negligence per se. Defendant 142 East moves to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the reasons below, the motion is granted.
The following facts are taken from the Complaint. See Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021). They are assumed to be true for purposes of this motion. See Int'l Code Council, Inc. v. UpCodes Inc., 43 F.4th 46, 53 (2d Cir. 2022).
Plaintiff is a French citizen who resides in New Caledonia. Defendant 142 East is a corporation that owns and manages the apartment building located at 142 East 33rd Street, New York, New York 10016. Defendant Rajacic resides at and operates a rental business in apartment 4F of that building (the “Apartment”).
On December 10, 2021, a friend of Plaintiff's helped him book a stay at the Apartment from December 29, 2021, to January 4, 2022. Plaintiff paid the full rental amount of $2,500 to Rajacic through Airbnb. On December 20, 2021, Rajacic confirmed Plaintiff's reservation.
On December 28, 2021, Plaintiff received notice that his flight to New York was cancelled. Plaintiff tried to change his arrival date on Airbnb but, by mistake, cancelled his booking for the Apartment. On December 29, 2021, Plaintiff contacted Rajacic several times about the booking. He told Rajacic that the cancellation shown on Airbnb was unintentional. Rajacic responded, assuring Plaintiff that he could stay in the Apartment as originally booked. She would then contact Airbnb and left a key to the Apartment for Plaintiff.
Plaintiff arrived at the Apartment the night of December 29, 2021. Rajacic had left a key to the Apartment for Plaintiff and gave him the passcode of the lockbox. She had also promised Plaintiff that the Apartment and building were safe and secure. In a text message, she said,
On December 30, 2021, Plaintiff returned to the airport to retrieve a missing bag. Reassured about the security and safety of the building, Plaintiff left all of his belongings in the Apartment. These included his laptop, a cell phone, a watch, over $20,000 in cash, two outwears, one camera and his carry-on bag with important travel documents, including Plaintiff's vaccine card and credit cards. While on his way, Plaintiff was contacted by Rajacic, asking him to rebook the Apartment and pay another $2,500. Plaintiff then texted and called Rajacic and Airbnb's customer service several times. At that time, he did not have a credit card or laptop with him to rebook the Apartment. Plaintiff planned to do so when he returned to the Apartment. At 1:50 P.M., Rajacic sent Plaintiff a text stating: “[I]t's ok, just rebook.” Rajacic asked Plaintiff to rebook the Apartment by 5:00 P.M.
Between 2:00 P.M. and 4:00 P.M, while Plaintiff was away, Rajacic entered the Apartment, opened Plaintiff's bag and found a significant amount of cash inside. She then decided to attack Plaintiff and steal his property.
When Plaintiff returned to the Apartment at 4:00 P.M., Rajacic pepper sprayed Plaintiff without any provocation. She pepper sprayed Plaintiff's face and eyes, leaving him with a bloodied nose and burning eyes. Police arrived within ten minutes. Rajacic lied to the police, stating that Plaintiff had attacked her and stolen the key to the Apartment. But Plaintiff had recorded the encounter, and the police arrested Rajacic. Plaintiff was sent to the hospital by ambulance.
Defendant 142 East had required Rajacic to register the name of all her Airbnb guests with its onsite staff. It had installed surveillance cameras and had employees on site to ensure the security and safety of its tenants and guests in the building. At the time of the incident, 142 East had exclusive control over who had the right to enter into the building.
Plaintiff's property has not been returned to him. Without his credit cards and cash, he has had to borrow money from friends to pay for his stay in the U.S. Due to the loss of his vaccine card, Plaintiff could not travel back to France or to New Caledonia, where he operated a restaurant business. As a result, his business sustained substantial losses, including rents, wages, supplies and loss of profits, which in total exceed $30,000 monthly. The restaurant was forced to close, and Plaintiff defaulted on his three-year lease extension. The landlord seized all equipment and furnishings that Plaintiff owned at the restaurant, which account for losses exceeding $380,000.
Plaintiff continues to have acute eye pain, swelling and headaches and will have to continue his treatments for a period of time. He was traumatized by the event and experiences severe anxiety and fear about meeting people he does not know.
On a motion to dismiss, a court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party but does not consider “conclusory allegations or legal conclusions couched as factual allegations.” Dixon v. von Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (internal quotation marks omitted). To withstand a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 854 (2d Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; accord Dane v. UnitedHealthcare Ins. Co., 974 F.3d 183, 189 (2d Cir. 2020). It is not enough for a plaintiff to allege facts that are consistent with liability; the complaint must “nudge[ ] [plaintiff's] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Bensch v. Estate of Umar, 2 F.4th 70, 80 (2d Cir. 2021). To survive dismissal, “plaintiffs must provide the grounds upon which [their] claim rests through factual allegations sufficient to raise a right to relief above the speculative level.” Rich v. Fox News Network, LLC, 939 F.3d 112, 121 (2d Cir. 2019) (alteration in original) (internal quotation marks omitted).
New York law governs this dispute because the parties' submissions assume that it does. See In re Snyder, 939 F.3d 92, 100 n.2 (2d Cir. 2019) .
The Complaint asserts claims of assault, battery, intentional infliction of emotional distress, conversion, negligence and negligence per se against all Defendants. Defendant 142 East argues that all claims against it should be dismissed for failure to state a claim. For the reasons below, Defendant 142 East's motion to dismiss is granted.
The Complaint fails to state a claim against Defendant 142 East for the intentional torts of assault, battery, intentional infliction of emotional distress and conversion. “Intentional torts require proof of intent, not mere negligence.” Wood v. Strong Mem'l Hosp. of Univ. of Rochester, 692 N.Y.S.2d 277, 278 (4th Dep't 1999); accord Rafter v. Bank of Am., No. 4 Civ. 3341, 2009 WL 691929, at *10 (S.D.N.Y. Mar. 12, 2009). The allegations in the Complaint, construed in the light most favorable to Plaintiff as the nonmoving party, fail to allege facts showing tortious intent on the part of 142 East. For example, it is Rajacic who is alleged to have “attacked [Plaintiff] and seriously injured him” and intended “to steal [Plaintiff's] properties, especially over $20,000 cash.” The allegations against 142 East -- that it “had the exclusive control over who had the right to enter the building” and therefore the “duty to control and stop the operation of Defendant [Rajacic's] illegal rental business” -- are germane only, if at all, to Plaintiff's negligence claims, which are addressed below.
Plaintiff argues that 142 East is vicariously liable for the intentional torts of Rajacic under a principal-agent theory. See Restatement (Third) of Agency § 2.02, cmt h (2006) (“If a principal authorizes the agent's commission of a crime or an intentional tort, the principal will be subject to liability for the agent's wrongdoing.”); accord In re Terrorist Attacks on Sept. 11, 2001, 298 F.Supp.3d 631, 644 (S.D.N.Y. 2018) ( New York law). Even assuming that the Complaint sufficiently states a claim against Rajacic, which would be necessary to impute the tortious conduct to 142 East, the argument is unpersuasive. Under New York law, “an agency relationship ‘results from a manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and the consent by the other to act.'” N.Y. Marine & Gen. Ins. Co. v. Tradeline (L.L.C.), 266 F.3d 112, 122 (2d Cir. 2001) ( New York law); accord Steinbeck v. Steinbeck Heritage...
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